Free Claim Construction Opening Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
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In re: REMBRANDT TECHNOLOGIES, LP PATENT LITIGATION

MDL Docket No. 07-md-1848 (GMS) JURY TRIAL DEMANDED

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REMBRANDT TECHNOLOGIES, LP'S OPENING CLAIM CONSTRUCTION BRIEF ON THE "EIGHT PATENTS"

Collins J. Seitz, Jr. (#2237) Francis DiGiovanni (#3189) James D. Heisman (#2746) CONNOLLY BOVE LODGE & HUTZ LLP 1007 N. Orange Street P.O. Box 2207 Wilmington, Delaware 19899 Telephone: (302) 658-9141 [email protected] [email protected] [email protected] Of Counsel: Max L. Tribble, Jr. SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5096 Telephone: (713) 651-9366 Brooke A.M. Taylor Edgar Sargent Matthew R. Berry SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, Washington 98101-3000 Telephone: (206) 516-3880 Attorneys for Rembrandt

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TABLE OF CONTENTS I. II. III. INTRODUCTION & BACKGROUND ..............................................................................1 LEGAL STANDARDS .......................................................................................................2 THE PROPER CONSTRUCTION OF THE DISPUTED TERMS ....................................3 A. The `631 Patent ........................................................................................................3 1. The Calling and Answering Modems Should Not be Limited to those Operating on a Telephone Network or under any "standards..........................4 Physical Layer/Link Layer & Related Terms ..................................................5 Means Plus Function Claims for Establishing Connections in the Physical and Link Layers.................................................................................8 The word "Logic" ............................................................................................9

2. 3.

4. B.

The `761 Patent ........................................................................................................9 1. 2. 3. Error Control..................................................................................................10 Error Control Negotiation Sequence/Sequences............................................11 A Physical Layer for a Data Connection .......................................................11

4. "To Determine a Set of Parameters for the Physical Layer of the Data Connection with the Far End Data Communications Equipment" .................12 5. C. Selecting On of a Number of Error Control Negotiation Sequences.............13

The `444 Patent ......................................................................................................13 1. 2. 3. Communication Link Control Information....................................................14 Maximum Transmission Rates ......................................................................15 "The Preamble Operating to Frame the Message and to Delimit the Message from Silence" ..................................................................................15 Means for Applying a Preamble to a Communication Message....................16 Means for Encoding the Preamble Bits into a Plurality of Symbol Indices ............................................................................................................17

4. 5.

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D.

The `858 patent ......................................................................................................17 1. 2. 3. 4. 5. 6. 7. 8. 9. Time-Division Multiplexed Bus ....................................................................18 Packet Data ....................................................................................................19 Synchronous Data ..........................................................................................19 Terms Involving "Bandwidth" and Portions thereof .....................................20 "Portion" ........................................................................................................21 "Distributed Packet Manager" ......................................................................21 Network Access Manager (Module)..............................................................22 Data Communications Apparatus/Equipment................................................23 Bus .................................................................................................................24

10. A Plurality of Packet Data Sources................................................................24 11. "Interface Circuitry" ......................................................................................25 12. "Counter" .......................................................................................................25 13. "Controlling Access..." and "transmitting packet data..." ...........................26 E. The `819 Patent ......................................................................................................27 1. 2. 3. 4. 5. 6. 7. 8. Applications Program[s] ................................................................................27 "Time Slot" and Related Terms.....................................................................27 Reservation Request Generator/Reservation Request Processor...................28 Priority Bit .....................................................................................................29 Master Unit/Remote Unit...............................................................................30 Master Network Timing Means .....................................................................30 Ranging Means ..............................................................................................30 "Transmitting" ...............................................................................................31

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F.

The `903 Patent ......................................................................................................31 1. 2. "Noise Spectrum" ..........................................................................................31 "generating parameters responsive to said noise spectrum of said output;" and "calculating a noise spectrum of said output"...........................32 adjusting frequency characteristics of output from said transmitting Step responsive to the pre-emphasis coefficients ..........................................32 First Transmitting Means...............................................................................32 Means Plus Function Terms...........................................................................32

3.

4. 5. G.

The `159 Patent ......................................................................................................35 1. The Invention Does Not Require That Every Program in the System be Stored In or Executed From the Program Memory .......................................36 The System may Contain Volatile and Non-Volatile Memory .....................37 Not All Programs Must Be Executed From Non-Volatile Memory ..............37 The Processor and Communications Port May Contain Memory and May Store Information Received Through the Communication Port............38 Additional Improper Limitations Imposed by Defendants ............................38 The Claim Terms Describing the Downloading or Execution of Programs Do Not Require That The Newly Downloaded Programs be Immediately Executed ..............................................................39 Remaining Means Plus Function Terms Are Properly Supported..................40

2. 3. 4.

5. 6.

7.

IV.

CONCLUSION......................................................................................................40

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TABLE OF AUTHORITIES

Baldwin Graphic Sys. v. Siebert, Inc., 512 F.3d 1338 (Fed. Cir. 2008)..................................................................................................7, 12 Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106 (Fed. Cir. 2002)..................................................................................................2, 17 See Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374 (Fed. Cir. 2006)........................................................................................................6 Finisar Corporation v. DirecTV Group, Inc., 523 F.3d 1323 (Fed. Cir. 2008). .....................................................................................................2 Intervet Am., Inc. v. Kee-Vet Lab., Inc., 887 F.3d 1050 (Fed. Cir. 1989)........................................................................................................2 See Lighting World, Inc. v. Birchwood, 382 F.3d 1354 (Fed. Cir. 2004)........................................................................................................9 Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff'd 517 U.S. 370, (1996)................................................2 See Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc)........................................................................................2 Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243 (Fed. Cir. 1998)........................................................................................................2 Rexnord Corp. v. Laitram Corp., 274 F.3d 1336 (Fed. Cir. 2001)......................................................................................................20 SciMed Life Sys. v. Advanced Cardiovascular Sys., 242 F.3d 1337 (Fed. Cir. 2001)........................................................................................................1 3Com Corp. v. D-Link Sys., Inc., 473 F. Supp. 2d 1001 (N.D. Cal. 2007) ...........................................................................................9 See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996)..............................................................................................2, 19, 20

Periodicals IEEE Dictionary (1996) ...............................................................................................................6, 7 Newton's Telecom Dictionary (1994) ...........................................................................................20 iv

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Other Statutes 35 U.S.C. § 112, ¶6..........................................................................................................2, 9, 30, 31

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I.

INTRODUCTION & BACKGROUND The eight Rembrandt patents in suit relate to cable modems and systems. Two patents

(5,852,631 and 5,717,761) relate to improved ways of establishing connections between two communication devices, e.g., in a cable modem system; four patents (6,950,444; 5,880,903; 4,937,819 and 5,719,858) relate to improved data transmission in a cable modem system; and two patents (6,131,159 and 5,778,234) relate to improvements for updating software (firmware) in modems.1 Rembrandt suggested twenty-eight non-means plus function claim terms for construction from these eight patents. Defendants insisted on construction of over one hundred non-means plus function terms.2 Defendants requested construction of many short phrases (including some proposed by Rembrandt), and then also requested construction of longer claim phrases that include those already-requested shorter phrases. Defendants' proposed constructions are

improperly restrictive and overly complicated, and their proposal to inundate the Court with over one hundred mostly redundant terms needlessly complicates and enlarges the Markman process. Rembrandt believes that the parties' actual disputes could be resolved more efficiently with far fewer claim terms construed by the Court. Rembrandt properly and consistently construes the claim terms as required by the law ­ in accordance with their plain and ordinary meaning and based on the intrinsic evidence. Defendants, in contrast, repeatedly commit a self-serving "cardinal sin of patent law--reading a limitation from the written description into the claims." SciMed Life Sys. v. Advanced

Cardiovascular Sys., 242 F.3d 1337, 1340 (Fed. Cir. 2001). The Court should reject Defendants'
The `631, `819 and `858 patents were asserted in Texas against defendant Comcast. Rembrandt v. Comcast, 2:05-cv-00443-TJW ("the Texas case"). The court issued a Markman ruling, which this Court vacated. Docket #9. The Markman ruling and Rembrandt's briefing from the Texas case are included in the Joint Appendix. Rembrandt did not include Comcast's briefing as it was filed under seal, but did include Comcast's objections to the Markman ruling, which were not filed under seal. See R 1-135. 2 The Joint Claim Chart reflects which party or parties proposed a particular term for construction. Rembrandt's proposed terms are italicized, and those proposed by Defendants are underlined.
1

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overly narrow and needlessly complicated constructions in favor of those offered by Rembrandt. II. LEGAL STANDARDS The purpose of claim construction is to "determin[e] the meaning and scope of the patent claims asserted to be infringed." Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff'd 517 U.S. 370 (1996). Claim construction is a matter of law. Id. at 970-71. Intrinsic evidence--the patent claim language, the specification, and prosecution

history, considered in this order of importance--is the primary source of guidance as to the meaning of the claim terms. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83 (Fed. Cir. 1996). "[T]he claim construction inquiry . . . begins and ends in all cases with the actual words of the claim." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998) (citations omitted). "Generally this court gives claim terms their ordinary and customary meanings, according to the customary understanding of an artisan of ordinary skill at the time of the invention." Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1328 (Fed. Cir. 2008). "The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (citation omitted). "[T]his court has consistently adhered to the proposition that courts cannot alter what the patentee has chosen to claim as his invention, that limitations appearing in the specification will not be read into claims, and that interpreting what is meant by a word in a claim `is not to be confused with adding an extraneous limitation appearing in the specification, which is improper.'" Intervet Am., Inc. v. Kee-Vet Lab., Inc., 887 F.2d 1050, 1053 (Fed. Cir. 1989) (first emphasis added; citation omitted). An element of a claim may be expressed using a "means-plus-function" description ­ i.e., as a means for performing a specified function. 35 U.S.C. §112, ¶6. Construing means-plus-

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function limitations is a two step process. First, the Court must identify the claimed function. Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1113 (Fed. Cir. 2002). In doing so, "[t]he court must construe the function of a means-plus-function limitation to include the limitations contained in the claim language, and only those limitations." Id. Second, the Court must determine what structure in the specification corresponds to the claimed function. Id. "In order to qualify as corresponding, the structure must not only perform the claimed function, but the specification must clearly associate the structure with performance of the function." Id. III. THE PROPER CONSTRUCTION OF THE DISPUTED TERMS A. The `631 Patent (R 195-203)3

The `631 Patent describes and claims a method and system to reduce the time required for two communication devices (e.g., modems) to establish communication with one another. The complement of procedures carried out to effect efficient and orderly communications between communication devices are conventionally divided into a hierarchy or stack of "layers". Each layer provides a unique set of functions necessary to effect the desired communications. Each layer generally depends on or uses functionality of the layers below it in the hierarchy, and each layer provides functionality to the layers above it. In a taxonomy known as the Open Systems Interconnect (OSI) Reference Model, the two lowest layers are known as the "physical layer" and the "link layer." The lowest layer ­ the "physical layer" covers electrical and physical aspects of the devices' connections. The next layer--the "link layer" covers the transfer of data between the devices, including detection, and possibly correction, of transmission or reception errors. 1:2154;4 11:29-36; 2:60-3:15. R 139-141, ¶¶ 16-21.5 Because different modems may support different protocols, it is necessary for two
3

Refers to Rembrandt's Table of Constructions.

4

Citation to #:# indicates column and line numbers for the particular patent being discussed, which will be included in the Joint Appendix. Thus, for example, 1:56-57 refers to Column 1, Lines 56-57. Except where otherwise noted, all emphasis in quoted materials is added. 5 The declaration of Professor Kevin Almeroth is submitted as part of the Joint Appendix, and specific paragraphs therein shall hereafter be referred to as R __, ¶ #.

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modems to "negotiate" which protocols they will use to communicate with each other. Prior to the invention of the '631 Patent, two devices that needed to negotiate communication protocols would first negotiate the protocols needed to establish a physical layer connection, and then would have to negotiate again (in a second full negotiation) to establish a link layer connection (one layer "up" from the physical layer). The inventors of the '631 Patent realized was that in many cases two full negotiations were unnecessary. In particular, they realized that if the physical layer negotiation revealed that both modems supported a particular physical layer modulation, the link layer negotiations could be avoided. 11:44-46. One innovation detailed in the `631 patent, exemplified by claim 1, increases the efficiency of the connection sequence between two devices by establishing a protocol for the data link layer based on an alreadyestablished physical layer modulation, thereby eliminating the need for a separate negotiation regarding the link layer protocol. The `631 patent is not limited to any particular type of physical equipment or network connection, and nothing in the `631 patent limits its scope to any type of protocol or telecommunications standard. Defendants, nevertheless, repeatedly proffer constructions that would restrict the claims to specific networks using specific types of modem technology operating with specific standards. These transparent attempts to unduly limit the scope of the patent should be rejected. 1. The Calling and Answering Modems Should Not be Limited to those operating on a Telephone Network or under any "standards"6

Rembrandt's proposed constructions of these two terms are based upon their plain meaning and are consistent with the intrinsic evidence. R 141-42, ¶¶ 22-25. Defendants

improperly seek to limit the scope of the claims by adding requirements that are simply not

6

Defendants request construction of the terms "calling modem" and "cable modem" (in the Texas case the meanings of these terms was not disputed).

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present in the claim language or required by the patent. Defendants have taken various examples from the specification and insert these examples as limitations into the claims­contrary to legal precedent, and despite the fact that the `631 description specifically states that it refers to a preferred embodiment and should not be limiting. 3:63-4:4. For example, Defendants propose that the "modem" be limited to modems "operable with ITU V. standards." Defendants'

constructions also improperly require that the calling and answering modems communicate over a telephone network, or that the physical layer protocol be limited to "a telephone network standard." Expressly contrary to Defendants' added limitations, however, the `631 specification makes clear that the claimed inventions may employ a variety of protocols and different types of networks. 1:34-36, 42-46, 55-61; 2:12-17, 32-38; 55-60; 4:20-24. Thus, the specification identifies the TCP/IP protocol, a non-telephone network protocol, as an exemplary protocol that could be used. 1: 31-47.7 The TCP/IP protocol was designed for computer communication and is used for communications over the Internet, and was well-understood at the time the `631 patent was filed to operate over many types of networks in addition to telephone networks. R 142-43, ¶¶ 26-27. In addition, Figure 1 of the `631 patent shows modem 28 connected to both an IP network and a PSTN network, and notes that Fig. 1 shows "a system illustrating multiple modems intercommunicating through a variety of mediums, including cellular and PSTN." 4:2024. 2. Physical Layer/Link Layer & Related Terms

Rembrandt's constructions neither expand nor contract the scope of the claims, but seek to construe the claim language as understood by one of ordinary skill in the art. For example, Rembrandt's constructions of "establishing a link layer connection between a calling
7

The `631 patent specification is explicit throughout that what is described therein is only by way of example: 3:65- 4:4; 6:16-19; 11:30-32; 11:52-55; 14:15-20.

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modem...and an answering modem" and "establishing said link layer connection based upon said negotiated physical layer modulation" make clear that a network connection is "established" in a particular layer by applying parameters that govern communication through that layer. R 144-45, ¶¶ 28-29. In addition, the specification teaches that "negotiating" may include the "exchange [of] parameters that identify the modems, and thus, their communications protocol" which "synchronizes the modems for communication in accordance with the same standard protocol. . ." 6:31-36. Defendants repeatedly seek to narrow the claims by proposing limitations not found in the claim language or mandated by the specification. For example, in the claim terms "physical layer modulation" and "establishing a link layer ...", Defendants improperly limit the claim scope to networks established over telephone lines. As discussed in Section III.A.1, no such limitation exists in the patent. Defendants once again try to import the word "standard[s]." With respect to the claim terms "wherein said physical layer connection ...." and "establishing said link layer ....", Defendants improperly import a requirement that the modems identify parameters for the physical and link layers by defaulting to settings pre-established in the modems themselves. This limitation, however, is found in dependent claim 4. Under the principles of claim differentiation, it would be incorrect to read this limitation into claims other than dependent claim 4. See Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir. 2006). Rembrandt's construction for "physical layer" is drawn directly from the definition propounded in the article setting forth the OSI Reference Model, specifically referenced in the patent specification. 1:49. This original and authoritative definition states that the physical layer "provides the mechanical, electrical, functional, and procedural characteristics to establish, maintain, and release physical connections." R 127. Similarly, the IEEE Dictionary published

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near the time of the invention defines " physical layer" as " the layer of the ISO Reference Model that provides the mechanical, electrical, functional, and procedural characteristics [to] access . . . the transmission medium." R 120. The IEEE Dictionary (published the same year as the patent's effective filing date) defines "link layer" as the "layer of the ISO reference model that provides the functional and procedural means to transfer data between stations (i.e., modems), and to detect and correct errors that can occur in the physical layer." R 119. Rembrandt proposes that the Court adopt this definition, substituting "modems" instead of "stations" for clarity. The Court should reject Defendants' attempt to selectively pluck portions of the IEEE definitions. Defendants' constructions also try, incorrectly, to impose temporal or ordering requirements or limitations on types of data transfer that do not exist in the claims. Baldwin Graphic Sys. v. Siebert, Inc., 512 F.3d 1338, 1345 (Fed. Cir. 2008) ("[A]lthough a method claim necessarily recites the steps of the method in a particular order, as a general rule the claim is not limited to performance of the steps in the order recited, unless the claim explicitly or implicitly requires a specific order."). In their construction of the claim terms "establishing a link layer connection ...." and "establishing said link layer connection ....", Defendants propose a requirement, unsupported by any claim language, that the connection be established "without transferring data bytes" and "before the modems can transfer data bytes." Defendants' pattern of inserting improper claim limitations continues with their proposals that the physical layer be established "upon completion of training and start-up, before any link layer connection is established" and that it must be established by using "communication techniques different from data byte transfer," which are without foundation in the `631 patent claims. Instead, the claim language requires only that the physical layer be established "based on a negotiated physical layer modulation chosen from said first and second physical layer modulations." 14:32-36.

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3.

Means Plus Function Claims for Establishing Connections in the Physical and Link Layers.

Both parties seek construction of these means-plus-function terms: (1) "means for establishing a physical layer connection between said calling and said answering modems" and (2) "means for establishing said link layer connection based upon said negotiated physical layer modulation." The parties agree on the function set out in the first term: "establishing a physical layer connection," and Rembrandt has properly listed the structure necessary to perform the recited function. Defendants, in contrast, improperly pack their proposed construction with voluminous unnecessary elements from various parts of the patent disclosure. The only structure needed to establish a physical layer connection is a control processor programmed to perform the steps of identifying and applying a commonly supported physical layer communication protocol between the calling and answering modems. 2:64-3:15; 2:65-4:5; 4:20-24; 5-5:42-44; 6:30-36; 11:35-46; 12:62-13:22; 12:37-41. R 145-46, ¶¶ 30-32. Defendants seek to add unnecessary structures that perform functions other than "establishing a physical connection," including listening to, and creating frequency tones in, both the calling and answering modems. Id. Defendants again seek to import a limitation that would restrict the claims to applications using telephone lines as the communications medium, which should be rejected. As to the term "means for establishing said link layer ...", Rembrandt proposes a function description that is based on the plain language of the claim, i.e., "establishing the link layer connection based upon the negotiated physical layer modulation." The only structure necessary to "perform the link layer connection is programmable hardware configured to perform the step of establishing link layer parameters to default values that are based upon the previously negotiated physical layer modulation." 11:39-46; 12:55-13:41. R 146-47, ¶¶ 33-34. Defendants' proposed construction also adds the limitation that the calling modem be -8-

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restricted to a PSTN or cellular modem where these limitations -- just like the improper references to a telephone network -- are not necessary to the claimed function. 4. The word "Logic"

Claim 10 of the `631 patent describes a computer program product that has "computer program logic recorded thereon." Claim 10 includes the word "logic" in the two claim terms: "logic for establishing a physical layer connection ..." and "logic for establishing a link layer connection ..." "Logic" as it is used in these claims means computer code (see, e.g., the claim preamble: "computer program logic") that, when executed, performs the described task. 13:5814:10. R 147, ¶¶ 35-36. One skilled in the art, reading this claim, would understand that computer code, when executed, establishes both the physical and link layer connections. Id. This disclosure of the structure (i.e. the code) does not trigger "means plus function" analysis claims under 35 USC §112, ¶ 6. Where claim language does not include the word "means," a rebuttable presumption is triggered that § 112(6) does not apply. See Lighting World, Inc. v. Birchwood, 382 F.3d 1354, 1358 (Fed. Cir. 2004); 3Com Corp. v. D-Link Sys., Inc., 473 F. Supp. 2d 1001, 1017 (N.D. Cal. 2007) (holding that the term "logic" in the claim language at issue in that case did not invoke 35 U.S.C. § 112(6)). "[T]he presumption flowing from the absence of the term `means' is a strong one that is not readily overcome." Lighting World, Inc., 382 F.3d at 1358. Nothing rebuts the "strong" presumption that § 112(6) does not apply to this claim. B. The `761 Patent (R 203-206)

The `761 Patent relates to improved ways of establishing connections between two devices, e.g., in a cable modem system. Because different modems may support different protocols, communication between modems generally requires that they "negotiate" which protocols they will use for their communication. The "negotiation" of a protocol for a particular connection does not imply that the connection is established ­ establishment of a connection

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using a negotiated protocol may be a separate step. As also described above, a connection between two modems takes place at various layers within a hierarchy of layers. Exemplary claim 1, describes (a) negotiating a physical layer of a data connection to determine a set of parameters for the physical layer; and (b) selection of an "error control negotiation sequence" as a function of a value of at least one parameter of the physical layer. 1. Error Control

Defendants' proposed construction improperly adds three unfounded and unsupported limitations to the claim term: 1. "protocol standards": Defendants again try to inject the term "standard"

(discussed in Section III.A.1) into the claims, despite the fact the `761 patent makes no mention that it is limited to (or covers) any standard. The terms "protocol" and "standard" both ignore the specific teaching of the `761 patent ­ that an approach to error control may be to do nothing. 4:12. 2. "LAPM, MNP, or Buffer": Defendants' proposed construction improperly adds

limitations to the claim from examples presented in the specification ­ even though the specification disclaimed these examples as non-limiting. The specification discusses LAPM, MNP, and Buffer because these were the "types of error control protocols used [when the patent was filed]." `761: 1:18-20. The specification makes clear that "[t]he foregoing [examples in the specification] merely illustrate[] the principles of the invention and it will thus be appreciated that those skilled in the art will be able to devise numerous alternative arrangements which, although not explicitly described herein, embody the principles of the invention and are within its spirit and scope." Id. at 4:40-45. The `761 inventions are not limited to modems, but instead "[t]he present invention relates to data communications equipment, e.g., modems. . . ." `761 at 1:5-6 (emphasis added). Because LAPM, MNP, and Buffer are applicable only to modems and

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not to data communications equipment in general, it would be improper to read that limitation into the claim. R 147-48, ¶¶ 37-38. 3. "in existence as of May 31, 1995": The Court should reject Defendants' invitation

to limit the scope of "error control" to the link layer error control protocol standards in existence as of any particular date, e.g., May 31, 1995. Nothing in the intrinsic evidence supports such a limitation; indeed, the above quoted provision contradicts this unwarranted limitation. 2. Error Control Negotiation Sequence/Sequences

Rembrandt's construction is consistent with the intrinsic evidence and with its definitions of other terms (e.g., "error control"). Defendants' construction of "error control negotiation sequence" includes a number of limitations that are found nowhere in the intrinsic evidence or in the language of the asserted claims and are instead additional attempts to improperly import examples from the specification as claim limitations. First, the claim language is not limited to "error control protocols," which is the focus of Defendants' construction. Second, Defendants' construction adds ambiguity by using a term, "error control protocols," that is undefined. 3. A Physical Layer for a Data Connection

The parties' constructions of the term "physical layer" do not reference standards or temporal limitations. Without any basis, Defendants argue that when the term "physical layer" is used in the phrase "a physical layer for a data connection" it should be limited to: (1) an ITU V industry standard (e.g., V.22, V.22bis, V.32, V.32 bis, V.34); (2) in existence as of May 31,

1995. These two limitations, then, must be derived from the words "for a data connection" because they were not included in Defendants' definition of "physical layer." Defendants' proposed construction improperly attempts to limit this term to specific physical layer protocols mentioned in the specification and in existence as of May 31, 1995. None of the claims, however, contain limitations related to specific physical layer standards or

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temporal limitations, thus making it inappropriate to import such limitations into the claim terms. Not even the embodiments described in the specification are limited to specific physical layer industry standards or to those standards in existence as of a certain date. `761 Patent 3:49-51. The specification makes clear that the inventions in the `761 patent are not limited to modems, but instead "[t]he present invention relates to data communications equipment, e.g., modems. . . ." `761 Patent at 1:5-6. Because the ITU V. physical layer industry standards are applicable only to modems and not to the broader category of data communications equipment, it would be improper to limit the claim terms to the ITU V. physical layer industry standard. 4. "To Determine a Set of Parameters for the Physical Layer of the Data Connection with the Far End Data Communications Equipment"

Defendants' construction of the term "to determine a set of parameters for the physical layer of the data connection with the far end data communications equipment." Rembrandt believes that this term should have its plain and ordinary meaning as understood by a person of ordinary skill in the art: "to identify a set of parameters to be used for the physical layer [already defined] of the data connection between two data communication devices." R 148-49, ¶¶ 39-40. Defendants again attempt to import limitations not found in the claim language nor required by the specification. Defendants' proposed construction adds a temporal limitation on the claim language ("before error control") that is not supported. This temporal limitation is not part of the claim language. See Baldwin Graphic Sys., 512 F.3d at 1345 ("[A]lthough a method claim necessarily recites the steps of the method in a particular order, as a general rule the claim is not limited to performance of the steps in the order recited, unless the claim explicitly or implicitly requires a specific order."). Moreover, the temporal phrase "before error control" does not make sense when read in conjunction with Defendants' proposed construction of "error

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control"8 and would only serve to confuse the jury. Defendants also add the limitation that the "negotiated physical layer standard is used to determine the physical layer parameters," but that limitation is nowhere in the claim language. Again, Defendants improperly inject the word "standard" into the claim term (see discussion above III.A.1). 5. Selecting One of a Number of Error Control Negotiation Sequences ...

Defendants request construction of the term "selecting one of a number of error control negotiation sequences as a function of a value of at least one parameter from the set of parameters for the physical layer" (claim 1 of the `761 Patent). Notably, this term includes at least two other terms whose construction is requested, including "error control," and "error control negotiation sequences." Rembrandt's proposed construction carefully incorporates terms that have already been construed separately so as give the claim terms different scope. In other words, Rembrandt's constructions makes sense when read with the proposed constructions for the other terms in the `761 Patent. However, Defendants' proposed construction only creates confusion when inserted into the claim language because it does not account for the terms within the phrase that are being construed separately. Defendants' proposed construction again adds limitations not found in the claim language. Their proposed construction states, "after . . . determining the physical layer parameters . . .," but the claim does not require that the negotiation sequence be selected after all physical layer parameters are determined. `761, Fig. 2. C. The `444 Patent (R 206-210) Some

The '444 patent relates to enhancements in the transmission of data.

communication devices, such as, e.g., modems, transmit information in bursts of data, sometimes called frames.
8

Between bursts of information, there is transmission "silence."

The term

Inserting Defendants' proposed construction of "error control" into their construction for this term yields an incomprehensible construction: "before link layer error control protocol standards (LAPM, MNP, or Buffer) in existence as of May 31, 1995, the negotiated physical layer standard is used to determine the physical layer parameters of the data connection."

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"silence", however, does not necessarily mean that there is nothing on the line, only that there is no data being transmitted. For example, interference on a line may cause noise (both during and between transmissions). A device expecting a data transmission needs to be able to distinguish the silence (e.g., noise on the line) from the start of an actual data transmission. Accordingly, each frame includes a preamble (a sequence of initial bits) that helps to delineate the burst from the preceding transmission silence and helps the receiver synchronize with the sender's transmission. The novel preamble of the `444 Patent allows for messages to be framed and delimited from silence. The `444 patent describes various enhancements to the transmission of the preamble, and includes various ways to increase the effectiveness of the preamble: (1) encode the preamble at a lower data rate than the subsequent data; (2) transmit the preamble at the same or higher signal power level than the subsequent data; and (3) include in the preamble link control information to be used by the remote modem receiver and transmitter. The goal of these enhancements is to, "significantly increase the probability that the decoder will decode the preamble symbols error free." `444 Patent Abstract. 1. Communication Link Control Information

One approach described in the `444 Patent to enhance the ability to receive and decode a transmitted frame of data is to add communication link control information to the preamble. Neither the claim language nor the specification limits the type of communication link control information. Accordingly, the term "communication link control information" should be

construed as it would be understood by a person of ordinary skill in the art. R 149-51, ¶¶ 41-44. Defendants' proposed construction unjustifiably narrows the claim's scope by requiring that the communication include a defined list of specific types of information, including transmit rate, maximum receive rate, and address. This information which Defendants would require in the

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claim is specifically listed in the `444 Patent as exemplary. Figure 3B illustrates an "exemplar preamble." 9:35-36. Some of the information that Defendants include in the "communication link control information" is included in dependent claims (e.g., claims 4, 15 "maximum receive rate"; claims 5, 16: "format of data"). By virtue of claim differentiation, the proper construction of this term should therefore preclude those additional restrictive terms. Furthermore, Defendants propose the same construction for the two terms "communication link control information" and "a plurality of bits representing communication link control information." Rembrandt, however, proposes a construction for the second term reflecting the additional words "a plurality of bits representing. . . ." The two terms should be construed differently to account for their different scope. 2. Maximum Transmission Rates

Rembrandt requests construction of the term "maximum rate capable of being transmitted over a communication channel/ maximum rate capable of being supported over a communication channel." Defendants again attempt to insert limitations that are not part of the claim language. Neither the claims nor the specification require that the maximum rate be "specified" in the preamble. This proposed additional limitation is therefore improper. Rembrandt's construction is consistent with the scope of the claim and the specification. Abstract; 7:15-42 (referring to the bit per symbol rate at which the data portion of the message is normally sent). A person of ordinary skill in the art would understand this term to refer to the highest bit per symbol rate at which the data portion of the message is sent. R 151-53, ¶¶ 45-49. 3. "The Preamble Operating to Frame the Message and to Delimit the Message from Silence"

Defendants' construction of this term argues that "the preamble includes a first symbol transmitted at a power level higher than all other preamble symbols to precisely identify the - 15 -

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beginning of the message."

This requirement should fail in view of claim differentiation,

because it would nullify, e.g., dependent claims 24 ("increasing the energy of the first symbol index to reliably indicate the beginning of the communication message") and 35. Moreover, the claim does not (1) require that certain symbols from the preamble to be transmitted at a higher power; (2) limit transmission at a higher power solely to the first symbol; or (3) require that the first symbol "precisely identify" the beginning of the message. Defendants' construction also requires that the preamble includes "communication link control information used to precisely identify the end of the message". This requirement is contrary to the teachings of the `444 Patent, which teaches a way to identify the end of a message ­ but not using the preamble. Instead, this is done by an encoding of the message data. See, e.g., Abstract; 3:13-21, 3:32-39, Fig. 3A; 8:24-25 ("The extra bit ... indicates whether or not the cell just started .... is the last cell of the transmission"). But nothing in the `444 Patent teaches or in any way suggests that the preamble contains any information about the end of the message. Rembrandt's proposed construction is consistent with the language of the claim. It defines "preamble" for the jury as the term is used in the context of data packets (which Defendants' proposal fails to do) while recognizing that most of the remainder of the language in the claim relies on ordinary terms and therefore need not be construed by the Court. 4. Means for Applying a Preamble to a Communication Message . . .

Rembrandt and Defendants agree that the function of this term is "applying a preamble to a communication message." However, Defendants do not stop there. Instead, they add claim limitations that do not define the function of term. Rembrandt's designation of the structure corresponding to the recited function is limited to what is necessary to perform the corresponding function. See Cardiac Pacemakers, Inc., 296 F.3d at 1113. The two structures needed to perform the function are a sequencer and a

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multiplexer (elements 236 and 224). R 153, ¶ 50. Defendants seek to incorporate large swaths of the patent disclosure that are unnecessary to perform the function. Defendants have identified structures that are unrelated to the function of "applying a preamble to a communication message," including structures relating to the message format (element 201); remote address (element 202), receive rate (element 204), and transmit rate (element 206). R 153-54, ¶ 51. 5. Means for Encoding the Preamble Bits into a Plurality of Symbol Indices, . . .

Rembrandt and Defendants agree that the function of this term is "encoding the preamble bits into a plurality of symbol indices." But Defendants again ask the Court to inject limitations that are not part of the function of the term. With respect to the structure, Rembrandt and Defendants both identify the preamble encoder (element 219). However, Defendants improperly attempt to read the "2 bit per symbol preamble encoder" example in the specification as a claim limitation. The claims contain no such limitation, and Defendants ignore the express statement in the specification that the 2 bit per symbol rate is merely an example: "For purposes of illustration only, the symbols that encode the bits in the preamble 40 shown in FIG. 3A are encoded at a rate of two (2) bits per symbol. However, any number of bits per symbol lower than that of the normally transmitted data rate can be used so long as the symbol rate allows a receiving device to more reliably decode those symbols." 7:25-30. The Court should reject Defendants' proposed structure. D. The `858 Patent (R 210-220)

Time Division Multiplexing (TDM) is a technique whereby multiple data sources transmit data over a single network connection. The mechanism described in the '858 allows two different types of data sources--(1) "synchronous" data sources, which output data at a constant rate, and (2) "packet" data sources, which output data at a "variable rate" ­ to agree among themselves how to allocate time slots on a TDM bus. 1:8-11. In accordance with

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embodiments of the patent, multiple packet data sources are operatively connected to a TDM bus. The TDM bus is also connected to a "network access manager" (NAM), which connects the TDM bus to a wider network. The bandwidth of the TDM bus is partitioned into regular time slots, which help to delineate "channels" on the bus. For each segment of time ­ called a "frame" ­ certain timeslots are reserved for the transmission of "packet" data. These timeslots form a "multiple access packet channel," which acts as a single, common channel shared by the packet sources. 4:565:12. Remaining timeslots form channels for transmission of "synchronous" data. 5:10-12. Fig. 5 shows, schematically, this division of the bandwidth. Time slots on the left side are assigned to the multiple access packet channel, while time slots on the right-hand side may be assigned to synchronous data channels. A "distributed packet manager" within each packet data source is used to support sharing of the multiple packet channel(s) among the packet data sources. 6:6-14. 1. Time-Division Multiplexed Bus

Rembrandt's proposed construction is consistent with the `858 Patent's specification and a plain and ordinary reading of the claim term. R 154, ¶ 52. It accurately defines the technical concepts "multiplexed" (shared by two or more sources of data) and "time-division" (limiting each sources transmission to discrete intervals of time). Defendants improperly add language ("whereby only one device can successfully transmit over the bus at any one time") that is both not mandated by the specification and inconsistent with the term as it is understood by those skilled in the art. The `858 Patent expressly describes a bus which can support simultaneous transmission of packet-data and synchronous data. 2:49-53; 3:39-61; Fig. 3; Fig. 5. Even within the portion of the bus that is used for packet-data transmission, the patent contemplates an allocation of bandwidth by separating the bus into multiple logical channels, and with such an allocation, two or more

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devices (associated with different channels) may be transmitting over the bus at the same time. 11:12-15 ("Also, because the bandwidth of a TDM bus may be divided into many separate logical channels, data with different formats and access methods, such as isochronous and packet data, may be combined in the system."). Moreover, Claim 9 contains both the requirement of a TDM bus and the requirement that a portion of the bandwidth is "shared in such a way that only one of the plurality of packet data sources accesses the second portion of the predefined bandwidth at a time." 12:51-54. Defendants' proposed construction would improperly render this separate limitation in Claim 9 redundant. 2. Packet Data

Rembrandt construes "packet data" as it is expressly defined in the `858 Patent. 1:8-11 ("...both synchronous data and variable-bit-rate data ... (hereafter referred to as packet data)"). Defendants' construction improperly ignores the express definition in the specification. "The specification acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication." Vitronics Corp., 90 F.3d at 1582. It is black letter law that a patentee can "choose to be his or her own lexicographer by clearly setting forth an explicit definition for a claim term that could differ in scope from that which would be afforded by its ordinary meaning." Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001). "The specification acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication." Vitronics Corp., 90 F.3d at 1582. 3. Synchronous Data

Synchronous data are contrasted with packet data in the '858 patent, and so should have a distinct meaning. 1:20 (discussing "two types of data: synchronous data and packet data."). Whereas "packet data" refers to data with a variable bit rate, "synchronous data" should be construed to mean "constant bit rate data." As set forth above, the patent itself sets out an express definition for packet data as "variable bit rate data." This same intrinsic evidence supports a - 19 -

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definition of synchronous data as "constant bit rate data." Newton's Telecom Dictionary defines synchronous as data transmissions with "a constant time between successive bits, characters or events." R133. According to the patent, synchronous data supports "the ability to make

telephone, i.e., voice calls." 1:21-22. Voice calls require constant bit rate access to the bus to minimize gaps in the signal that might degrade the quality of the call. R154-55, ¶ 53-55. 4. Terms Involving "Bandwidth" and Portions thereof

Rembrandt' proposed definitions of these terms are consistent with the ordinary meaning of the term "bandwidth" and with its usage in the `858 Patent. Having defined the term "bandwidth" (as an amount of data that can be carried in a unit of time), Rembrandt's constructions give proper meaning to the various "portions" thereof (e.g., "one or more time slots of the bandwidth"), a predefined bandwidth ("a predefined amount of data that can be carried in a unit of time"), as well as "a portion of a predefined bandwidth", "a first portion of the predefined bandwidth", and so on. Rembrandt's definitions are well-supported by the intrinsic evidence. In several places the '858 Patent expressly ties portions of bandwidth to a number of time slots, e.g., a "portion of the bandwidth, or time-slots, of the TDM bus is allocated . . . ." Abstract; see also 5:15-18 ("[t]he time-slots allocated by NAM 205 to the packet application modules are the `multiple-access packet channel.'"); 5:60-61 ("Time-slots 1-6 represent the `multiple-access packet channel.'"); 12:4-5 ("by counting time-slots of the allocated bandwidth"). Defendants' proposed constructions of the terms "portion" in various combinations with "bandwidth," e.g., ("first portion of the predefined bandwidth") add limitations inconsistent with the claim language. In the case of the term "predefined bandwidth," Defendants improperly add "first and second portions." In addition, Defendants' construction of every term that includes the words "portion" and "bandwidth" inserts a requirement that the bandwidth be "fixed at [or

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during] initialization." Nothing in the intrinsic evidence supports such a limitation. Certainly the claims do not require that the predefined bandwidth be "fixed at initialization." Claims 7 and 9 reference "predefined" bandwidth, but even this language does not require that the bandwidth be defined at initialization, as the Defendants' argue. In addition, Claims 1 and 4 do not describe the term "bandwidth" as being "predefined" in any manner or at any particular time. Defendants' proposed additional limitation that any portion of the bandwidth be "fixed at initialization" should be rejected everywhere it is used. 5. "Portion"

Defendants request construction of the term "portion" (this in addition to various terms that include the word "portion", e.g., "... portion of the [predefined] bandwidth ..."). Rembrandt believes that the word "portion" requires no construction by the Court. In the alternative, however, Rembrandt proposes "a part of a whole." This is consistent with the intrinsic evidence (which never limits a "portion" to less than the full bandwidth) and with the ordinary meaning of the term. Indeed, the patent encompasses situations where both synchronous and packet sources are present on a TDM bus (and so neither would have the full bandwidth), and situations in which only packet sources are on a TDM bus (and so can take up the full bandwidth). Although Fig. 5 depicts only part (time slots 1-6) of the TDM bus allocated to packet data, the `858 Patent makes clear that the other time slots may also be used for packet data. 11:6-17 ("more than one `multiple-access packet channel' can exist ...[with] time-slots 1-6 ... [and], e.g., time-slots 7-12, for transmitting packet data"). 6. "Distributed Packet Manager"

Both parties request construction of the term "distributed packet manager". The meaning of this term is clear from the intrinsic evidence. See Fig. 4 (disclosing example of a packet manager) and 6:65-10:10 (discussing how the packet manager controls its data source's access to - 21 -

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the bandwidth). The concept that the manager be "distributed", is captured in the definition by requiring that each individual source have its own distributed packet manager. Once again, the Defendants' proposed construction is unnecessarily cumbersome and adds limitations not found in the claim or required by the specification: specifically, Defendants' addition of the limitation "without the need for a centralized packet manager" is not justified. Further, Defendants' add the limitation that the packet source "communicat[e] with other packet data sources to control which one of the plurality of packet data sources can attempt to access the second portion of the predefined bandwidth at any one time" incorporates functionality that is not essential to the component in every embodiment. This limitation is contrary to a preferred embodiment in which a distributed packet manager attempts to access the bus not by communicating with another distributed packet manager but by "wait[ing] for its ID number to equal the count or ID number of the bit-time slot to attempt to access TDM bus 204-o." 7:66 ­ 8:2. 7. Network Access Manager (Module)

Claim 8 requires that the data communication device further include "a network access manager coupled to the time division multiplexed bus for communicating the synchronous data and the packet data to at least one network facility." The specification discloses two functions for the network access manager. First, it interfaces with a wider network, as shown, e.g., in Fig. 3. Second, the network access manager "controls time-slot allocation among the synchronous modules and the packet modules." 5:11-13. The specification states that the network access module "controls time-slot allocation among the synchronous modules and the packet modules" and "provides the interface between the TDM bus and network facility." 5:12-13; 3:46-47. Defendants' additional limitation that the network access manager be limited to a "network access unit" should be rejected as contrary to a plain reading of the claim 7, from which claim 8 depends. Claim 7 is not limited to a network access unit but more broadly claims a "communication apparatus." - 22 -

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8.

Data Communications Apparatus/Equipment

The `858 claims variously recite "Data communications apparatus" (claim 1); "Communications apparatus" (claims 7-11); "...in ... data communications apparatus. ..." (claim 15) and "... in ... data communications equipment ..." (claims 20, 26). Although Rembrandt does not believe that these terms require construction, in response to the Defendants' position Rembrandt proposes: "data communications apparatus." The terms "apparatus" and "equipment" are both plural and singular, and the claims specifically use the terms in their plural sense. Defendants' construction improperly requires all components of the claim to be in a single device, ignoring the specific language of the claims. See Claim 1 (recites "Data communications apparatus comprising ...." and not "A data communications apparatus comprising ..."). The specification also does not require that the various apparatus be in a single device. Figure 3 shows exemplary "apparatus" embodying the principles of the invention, logically collected as a NAU with a dashed line drawn around the various apparatus. The `858 Patent does not, however, describe an NAU as being a single device nor does it require it to be one. To the contrary, a NAU is described as an "architecture" 1:56. Defendants' definition also alters the plain meaning of the term by emphasizing network "access" rather than "communications." This is needlessly confusing and creates limitations where none exists in the claims. Defendants' definition also narrows the scope of the term by requiring that it facilitate communication between two specified elements of a network--a "local network" and a "network facility." This again is an unsupported limitation and the additional terms render the term more confusing and ambiguous than the original claim language being construed. 9. Bus

The specification indicates that the term "bus" was used in the plain and ordinary meaning of "one or more conductors that are used as a path for transmitting information from - 23 -

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any of several sources to any of several destinations."

2:57-65.

Defendants' proposed

construction that the bus is used for data transfer "among components" of a single "device" is contrary to the common definition of this well-understood term. R 155-56, ¶¶ 56-57. As discussed above, nothing in the patent requires that the various components be located in any particular place, let alone in the same device. This same argument applies to the bus.

Defendants' attempt to import this limitation on the patent through the term "bus" should be rejected. 10. A Plurality of Packet Data Sources

Rembrandt's proposed definitions of these terms are consistent with the plain meaning of the claim language and the intrinsic evidence. See, e.g., Fig. 3; 4:56-5:10. Defendants again import the requirement that there be no central packet manager. As earlier discussed, this limitation is not part of the claim language. Defendants add the further limitation that the packet sources each share the bandwidth "by contending for the use of entire channel in which no time slot is assigned to any particular packet data source." This limitation would erroneously mandate that a packet data source could only access the entire allotted bandwidth, and no fewer timeslots, which is contrary to the patent's teachings that the packet data source "may send any prescribed number of packets" and could even "limit this number to one." 10:12-17. Defendants also posit the additional limitation that "no time slot is assigned to any particular packet data source." This limitation, also nowhere found in the claim, is also contrary to at least one `858 preferred embodiment in which a time slot is assigned to each packet source in order for it to request access to the bandwidth.9

9

"FIG. 6 shows an illustrative slotted-access method. There is an implied numbering of the packet application modules and "bit time-slots." This implied numbering is hereafter referred to as an "ID number." Generally speaking, a packet application module can attempt to access TDM bus 204-o only when the ID number of the "bit time-slot" matches the ID number of the packet application module."

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Finally, the Defendants construction of "a packet data source" as "a circuit board" should be rejected because the claim does not recite a "packet circuit board." This is simply another of Defendants' improper attempts to limit the claim to an exemplary embodiment. That a packet data source is merely that, a source of packet data, is expressly supported by the claim language. 11. "Interface Circuitry"

Claim 10 introduces the term "interface circuitry... for synchronizing packet data to the time division multiplexed bus." Rembrandt's construction is consistent with the express claim language and specification.10 Defendants add the following additional limitations: "without the need for a centralized packet manager, by communicating with other packet data sources to control which one of the plurality of packet data sources can attempt to access the allotted bandwidth at any one time." Because the claim includes none of those limitations, they should be rejected for the reasons previously discussed. 12. "Counter"

While Rembrandt does not believe this term requires any construction, Rembrandt proposes the following in accordance with a plain reading of this claim language: "a device that measures time slots in the second portion of the predefined bandwidth." Defendants' proposal again includes unsupportable limitations--that the counter "counts only the time slots in the second portion of the predefined bandwidth." Nothing in the claim or the specification suggests that the mechanism used to count the time slots cannot also serve other functions. This limitation should not be read into the patent. 13. "Controlling access ..." and "transmitting packet data ..."

7:25-31. 10 The specification states: "[i]n accordance with the principles of the invention, packet/TDM